Michigan Supreme Court OPINION - State Bar of Michigan · temper and shooting someone. Driving the pointhome , the prosecutor continued, “[Y]ou wouldn’t want your dad to lose

FILED July 17, 2017

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 152916

TMANDO ALLEN DENSON,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH BERNSTEIN, J.

In this case, we consider whether evidence of defendant’s prior act was admissible

under MRE 404(b) to rebut defendant’s claims of self-defense and defense of others, that

is, defendant’s claim that he honestly and reasonably believed his use of force was

necessary to defend himself or another. We hold that the trial court erred when it

admitted defendant’s prior act because the prosecution failed to establish that it was

logically relevant to a proper noncharacter purpose. We also conclude that this error was

Michigan Supreme Court Lansing, Michigan

OPINION

Chief Justice: Stephen J. Markman

Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder

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not harmless. Accordingly, we reverse the judgment of the Court of Appeals and remand

the case to the trial court for a new trial.

I. FACTS AND PROCEDURAL HISTORY

This case stems from a physical altercation between defendant Tmando Allen

Denson and 17-year-old Shamark Woodward II on the evening of October 22, 2012. As

a result of this incident, defendant was charged with assault with intent to do great bodily

harm less than murder, MCL 750.84.

At trial, Woodward and defendant presented very different accounts of what

occurred on the night in question. Testifying for the prosecution, Woodward explained

that he had previously met defendant’s 15-year-old daughter, DD, at school and the two

started dating. On the evening of October 22, DD invited Woodward to her house at a

time when defendant and Rosemary Denson—defendant’s wife and DD’s mother—were

not home. Woodward and DD began talking and kissing on the couch in the living room.

When they heard a car outside, DD suggested that they go upstairs to her room, where the

two continued to kiss. Eventually, Woodward and DD removed their pants. Woodward

testified that he suddenly heard footsteps on the stairs and that defendant burst into the

room, finding the two teenagers in this compromising position. Defendant immediately

attacked Woodward, punching and kicking him and then hitting him with a lamp.

Defendant then forced both teenagers to undress and took photographs of them.

Defendant left the room and returned with two knives. Defendant instructed Woodward

to sit in the corner and proceeded to slash Woodward repeatedly across his back,

shoulders, and legs. Woodward denied possessing a weapon during the attack, denied

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fighting back against defendant, and denied sexually assaulting or threatening DD in any

way.

Woodward further testified that when he arrived home, he told his brothers what

had happened and was taken to the hospital, where he received numerous staples and

stitches. Photographs of Woodward’s injuries were admitted into evidence at defendant’s

jury trial. The photos showed two lacerations on Woodward’s back and lacerations on

his arm, shoulder, and leg. The attending doctor, Dr. Faisal Mawri, testified that

Woodward reported being assaulted and that his multiple injuries were consistent with

wounds inflicted by a sharp object. Woodward’s mother and a police officer who spoke

to Woodward at the hospital also confirmed the nature of Woodward’s injuries.

Defendant testified in his own defense, presenting a starkly different version of the

events. Defendant explained that, after arriving home from work, he went downstairs to

the basement to watch a football game with his two sons. DD, he believed, was upstairs

alone. All of a sudden, he heard a loud noise and immediately ran upstairs to investigate.

He heard DD yell, “[N]o, stop,” and “[W]hat are you doing, my daddy is downstairs.”

Defendant ran into DD’s room, where he saw DD on the floor and Woodward leaning

over her, trying to force his hand down her pants. Defendant admitted to physically

striking Woodward. Woodward then broke loose and ran downstairs. Defendant

followed Woodward downstairs, testifying that he was scared for his two sons, who were

still in the basement. Defendant and Woodward met once more in the kitchen, where

both individuals grabbed knives, and Woodward threw a glass at defendant, striking

defendant’s hand. Woodward then ran back upstairs where he and defendant threw their

knives at each other. At some point, shortly thereafter, the fighting ceased and

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Woodward left. Defendant denied taking pictures of the teenagers and denied using a

knife in the manner Woodward alleged. Defendant claimed that he honestly believed that

DD was being sexually assaulted and that he was protecting her and himself from

Woodward.

Defendant further testified that he immediately called his parole officer to report

the incident, but no one answered. He also went to the local police precinct but found

that it was closed. Defendant told the jury that he suffered a broken finger, puncture

wounds to his hand, and cuts on his arms. Although defendant sought to introduce jail

medical records to further substantiate these injuries, the trial court barred their admission

because defense counsel’s effort to obtain the records was dilatory.

Several witnesses testified on defendant’s behalf. Tmando Denson, Jr., one of

defendant’s sons, confirmed that he had been watching a game with defendant and that

defendant left the basement after hearing a loud noise upstairs. DD also took the stand,

largely corroborating defendant’s account of the incident and asserting that Woodward

had tried to sexually assault her. However, DD testified that she never saw defendant or

Woodward with a knife. She also denied seeing any cuts on Woodward’s body.

Rosemary Denson testified that DD had called her that evening to tell her what had

happened and that DD had received sexual assault counseling shortly afterward.

At trial, pursuant to MRE 404(b), the prosecution sought to admit the facts

underlying defendant’s prior 2002 conviction for assault with intent to do great bodily

harm less than murder, MCL 750.84.1 This prior conviction arose from an unrelated 1 Before trial, the prosecution had filed notice under MRE 404(b), indicating its intent to admit the facts underlying the 2002 conviction “[f]or the purpose of proving absence of

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incident involving an unrelated individual named Tyrone Bush. Apparently, after

becoming upset with Bush over a supposed drug debt, defendant had driven to Bush’s

home in Detroit, bashed in his car window, and shot Bush when he appeared on his porch

and turned to retreat back inside his home. Defense counsel objected to the admission of

any evidence related to the 2002 incident, arguing that it was an impermissible attempt to

use propensity evidence in violation of MRE 404(b). Citing this Court’s decision in

People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), defense counsel argued that

the 2002 incident was irrelevant, unfairly prejudicial, and offered for the improper

purpose of showing that defendant had acted in conformity with his allegedly violent

character. The prosecution responded that admission of the facts underlying the 2002

conviction did not violate MRE 404(b) because the evidence was not being offered to

show propensity, but rather to rebut defendant’s claims of self-defense and defense of

others. The trial court ruled that the prosecution could discuss the facts underlying the

conviction, but it barred the prosecution from introducing evidence concerning the actual

conviction unless defendant denied that the underlying facts occurred.

The prosecution subsequently elicited evidence of the 2002 incident from several

defense witnesses. The prosecutor asked defendant whether the specific facts of the 2002

incident were true. The prosecutor then suggested to defendant, “You have a bad temper,

don’t you?” Later, the prosecutor asked defendant to admit that beating Woodward got

the “rage out of your system, because you are a bully . . . , aren’t you? Yes or no?”

self-defense or defense of others, absence of mistake, modus operandi, scheme[,] plan and knowledge.” See MRE 404(b)(2).

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The prosecutor also brought up defendant’s alleged temper when questioning

members of defendant’s family. In cross-examining DD, the prosecutor informed her

that he was going to inquire “a little bit about your family history.” The prosecutor then

asked if DD was aware that defendant had previously gotten into trouble for losing his

temper and shooting someone. Driving the point home, the prosecutor continued, “[Y]ou

wouldn’t want your dad to lose control with you like he lost control with [Woodward].”

In contrast, the prosecutor sought to confirm with DD that Woodward was “a nice boy.”

Turning to Rosemary Denson, the prosecutor asked Rosemary whether she was aware of

the “family history” involving the 2002 incident and whether defendant’s bad temper and

loss of control caused her to fear defendant. The prosecutor also brought up the 2002

incident when questioning DD’s sexual assault crisis counselor, Christina Delikta. The

prosecutor asked whether defendant had told her about the 2002 incident in which he had

“gotten into trouble in the past for assaulting somebody in Detroit.” Defense counsel

repeatedly, but unsuccessfully, objected to the questions posed to all four defense

witnesses, at one point moving for a mistrial, which the trial court denied.2

The prosecution returned to the 2002 incident in closing argument. Addressing

defendant directly, the prosecutor stated:

And you know, we have no reasonable doubt; no doubt that’s fair that there was any kind of defense of anybody. This was just a savage

2 Additionally, when the trial court solicited witness questions from the jury, one juror sought to inquire of a police witness, “[D]o you think Mr. Denson is a violent person, or can be a violent person or have a bad temper[?]” The trial court did not permit this question to be asked.

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beating, Mr. Denson. You lost control, just like you did in Detroit when you shot that guy. You’re a bully, Mr. Denson and you’re a coward. . . .

* * *

. . . Cause you have Mr. Denson intending to cause great bodily harm to just a boy.

In comparison, the prosecutor assured the jury that Woodward was “a good guy.” And in

rebuttal, the prosecutor again argued:

The [2002] incident in Detroit. Hey, not a coincidence, okay. Not a coincident [sic] that the bully over a $75 . . . drug debt takes his gun, bashes the car window and shoots the guy while he’s retreating into the house. No self defense in that circumstance.

* * *

. . . And um, this guy pounded on [Woodward] with his hands, pounded on [Woodward] with his feet, kicking [Woodward] in the face, trying to wack [sic] him with the chair, bashing a lamp over his head and breaking it. . . . Then taking photos so he would have some evidence. . . . They’re not coincidences. No self defense.

The trial court gave self-defense and defense-of-others instructions to the jury.

Ultimately, the jury convicted defendant of assault with intent to do great bodily harm

less than murder, and defendant was sentenced as a fourth-offense habitual offender to a

prison term of 5 to 20 years.

On appeal, defendant argued that the trial court had erred by admitting under MRE

404(b) the evidence related to the 2002 incident. The Court of Appeals rejected this

claim and affirmed defendant’s conviction. People v Denson, unpublished per curiam

opinion of the Court of Appeals, issued October 1, 2015 (Docket No. 321200).

Specifically, the Court of Appeals believed that “[t]he contradiction of [defendant’s] self-

defense theory constituted a proper, noncharacter purpose for admission under MRE

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404(b).” Id. at 5. Further, while the Court of Appeals acknowledged that the evidence

was somewhat prejudicial to defendant, the panel concluded that there was no danger of

unfair prejudice, confusion of the issues, or misleading the jury. Id.

In this Court, defendant has again raised a challenge under MRE 404(b). We

scheduled oral argument on the application.3

II. STANDARD OF REVIEW

A trial court’s decision to admit evidence will not be disturbed absent an abuse of

discretion. People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). However,

whether a rule or statute precludes admission of evidence is a preliminary question of law

that this Court reviews de novo. Id. A trial court necessarily abuses its discretion when it

admits evidence that is inadmissible as a matter of law. People v Lukity, 460 Mich 484,

488; 596 NW2d 607 (1999).

When we find error in the admission of evidence, a preserved nonconstitutional

error “is presumed not to be a ground for reversal unless it affirmatively appears that,

more probably than not, it was outcome determinative—i.e., that it undermined the

reliability of the verdict.” People v Douglas, 496 Mich 557, 565-566; 852 NW2d 587

(2014) (quotation marks and citations omitted); Lukity, 460 Mich at 495-496.4 This

3 In his application in this Court, defendant raised several additional claims and requested a remand for an evidentiary hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Because we grant defendant a new trial on the basis of his MRE 404(b) challenge, we decline to address those other issues and deny the motion to remand for a Ginther hearing. 4 Defendant preserved his MRE 404(b) challenge by objecting to the admission of the other-acts evidence in the trial court.

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inquiry “focuses on the nature of the error and assesses its effect in light of the weight

and strength of the untainted evidence.” Lukity, 460 Mich at 495 (quotation marks and

citation omitted). “In other words, the effect of the error is evaluated by assessing it in

the context of the untainted evidence to determine whether it is more probable than not

that a different outcome would have resulted without the error.” Id.

III. MRE 404(b)

MRE 404 governs the admissibility of other-acts evidence. The general rule under

MRE 404(b) is that evidence of other crimes, wrongs, or acts is inadmissible to prove a

propensity to commit such acts. People v Crawford, 458 Mich 376, 383; 582 NW2d 785

(1998). Such evidence may, however, be admissible for other purposes under MRE

404(b)(1), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

The first sentence of this rule represents the deeply rooted and unwavering

principle that other-acts evidence is inadmissible for propensity purposes. People v Sabin

(After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000); Crawford, 458 Mich at 383.

Far from “a mere technicality,” this prohibition “gives meaning to the central precept of

our system of criminal justice, the presumption of innocence.” Crawford, 458 Mich at

383-384 (quotation marks and citation omitted). This rule reflects the fear that a jury will

convict a defendant on the basis of his or her allegedly bad character rather than because

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he or she is guilty beyond a reasonable doubt of the crimes charged. Id. at 384. Indeed,

the very danger of other-acts evidence “is not that it is irrelevant, but, to the contrary, that

using bad acts evidence can weigh too much with the jury and . . . so overpersuade them

as to prejudge one with a bad general record and deny him a fair opportunity to defend

against a particular charge.” Id. (quotation marks and citation omitted). Woven

inextricably into the fabric of our jurisprudence is the principle that “we try cases, rather

than persons . . . .” People v Allen, 429 Mich 558, 566; 420 NW2d 499 (1988). The

second sentence of MRE 404(b)(1) establishes that other-acts evidence may be

admissible for other nonpropensity purposes. Sabin, 463 Mich at 56; Crawford, 458

Mich at 390 n 8.

In VanderVliet, this Court articulated the following standard for the admission of

other-acts evidence:

First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [VanderVliet, 444 Mich at 55.]

A. PROPER PURPOSE

Under the first prong of the VanderVliet test, the question is whether the

prosecution has articulated a proper noncharacter purpose for admission of the other-acts

evidence. Crawford, 458 Mich at 385-386. The prosecution bears the burden of

establishing that purpose. Id. at 385. MRE 404(b) prohibits the admission of other-acts

evidence when the prosecution’s only theory of relevance is that the other act

demonstrates the defendant’s inclination for wrongdoing in general and thus indicates

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that the defendant committed the conduct in question. People v Starr, 457 Mich 490,

496; 577 NW2d 673 (1998), citing VanderVliet, 444 Mich at 63. On the other hand, such

other-acts evidence may be admissible whenever it is also relevant to a noncharacter

purpose, such as one of the purposes specifically enumerated in MRE 404(b)(1). Starr,

457 Mich at 496-497.

In the instant case, defendant presented testimony from several witnesses to show

that he honestly and reasonably believed that his use of force was necessary to defend

himself and his family. See MCL 780.972(2). Once defendant presented a prima facie

claim of self-defense or defense of others, the prosecution bore the burden of disproving

the claim beyond a reasonable doubt. See People v Dupree, 486 Mich 693, 709-710; 788

NW2d 399 (2010). In the instant case, the prosecution claimed that it offered evidence of

the 2002 incident to rebut defendant’s claims of self-defense and defense of others.5

Other courts have recognized these theories of admission,6 and they are best understood

as an attempt to rebut a defendant’s claimed state of mind, that is, to show that a

5 We note that the prosecution listed several additional possible purposes in its MRE 404(b) pretrial notice, specifically absence of mistake, modus operandi, scheme, plan, and knowledge. However, at trial, the prosecution did not offer these purposes as a basis for admission of the other-acts evidence. We have previously criticized such a “shotgun” approach, People v Golochowicz, 413 Mich 298, 314-315; 319 NW2d 518 (1982), and we now reiterate that the prosecution must articulate its evidential hypothesis with precision and “the trial court must identify specifically the purpose for which the evidence is admitted[.]” Crawford, 458 Mich at 386 n 6 (quotation marks and citation omitted). 6 See, e.g., Yusem v People, 210 P3d 458, 465 (Colo, 2009); State v Payano, 320 Wis 2d 348, 389; 768 NW2d 832 (2009); United States v Haukaas, 172 F3d 542, 544 (CA 8, 1999).

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defendant did not have an honest and reasonable belief that his or her use of force was

necessary to defend himself or herself or another. See State v Dukette, 145 NH 226, 230;

761 A2d 442 (2000) (“By filing a notice of self-defense, the defendant has placed her

state of mind at issue.”).

However, we have warned that “a common pitfall in MRE 404(b) cases” is that

trial courts tend to admit other-acts evidence merely because the proponent has

articulated a permissible purpose. Crawford, 458 Mich at 387. The “mechanical

recitation” of a permissible purpose, “without explaining how the evidence relates to the

recited purpose[], is insufficient to justify admission under MRE 404(b).” Id. It is

incumbent on a trial court to “vigilantly weed out character evidence that is disguised as

something else.” Id. at 388. In other words, merely reciting a proper purpose does not

actually demonstrate the existence of a proper purpose for the particular other-acts

evidence at issue and does not automatically render the evidence admissible. Rather, in

order to determine whether an articulated purpose is, in fact, merely a front for the

improper admission of other-acts evidence, the trial court must closely scrutinize the

logical relevance of the evidence under the second prong of the VanderVliet test. Id.;

Sabin, 463 Mich at 60.

B. LOGICAL RELEVANCE

Under the second prong of the VanderVliet test, logical relevance is determined by

the application of MRE 4017 and MRE 402.8 Crawford, 458 Mich at 388. We have

7 MRE 401 provides:

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emphasized the importance of logical relevance, calling it the “touchstone” of the

admissibility of other-acts evidence. Id. Other-acts evidence is logically relevant if two

components are present: materiality and probative value. Id.

1. MATERIALITY

Materiality is the requirement that the other-acts evidence be related to “ ‘any fact

that is of consequence’ ” to the action. Id., quoting MRE 401. “In other words, is the

fact to be proven truly in issue?” Crawford, 458 Mich at 388 (quotation marks and

citation omitted). The prosecution bears the burden of proving every element of a

charged offense beyond a reasonable doubt. Id. at 389. At trial, defendant presented

prima facie claims of self-defense and defense of others, and therefore the prosecution

bore the burden of disproving the claims beyond a reasonable doubt. See Dupree, 486

Mich at 709-710. Because the prosecution was required to disprove defendant’s claims

of self-defense and defense of others, these defenses were generally at issue. However,

because the specific other-acts evidence offered in this case was not probative of these

defenses, the other-acts evidence itself was not material.

“Relevant evidence” means evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

8 MRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.

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2. PROBATIVE VALUE

The prosecution must demonstrate the probative value of the other-acts evidence.

Crawford, 458 Mich at 389-390. In this case, the absence of probative value establishes

the inadmissibility of the other-acts evidence under MRE 404(b).

Evidence is probative if it tends “to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.” MRE 401; Crawford, 458 Mich at 389-390. Generally,

“[t]he threshold is minimal: ‘any’ tendency is sufficient probative force.” Crawford, 458

Mich at 390. “In the context of prior acts evidence, however, MRE 404(b) stands as a

sentinel at the gate: the proffered evidence truly must be probative of something other

than the defendant’s propensity to commit the crime.” Id. Thus, although the

prosecution might claim a permissible purpose for the evidence under MRE 404(b), the

prosecution must also explain how the evidence is relevant to that purpose without

relying on a propensity inference. See id. Ultimately, the court must determine whether

the prosecution has established “some intermediate inference, other than the improper

inference of character, which in turn is probative of the ultimate issues in [the] case . . . .”

Crawford, 458 Mich at 391. If not, the evidence is inadmissible. Id. at 390.

In evaluating whether the prosecution has provided an intermediate inference other

than an impermissible character inference, we examine the similarity between a

defendant’s other act and the charged offense. Id. at 394-395. In this case, we note that

the prosecution sought to admit the other-acts evidence particularly based on the alleged

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similarities between the 2002 incident and the charged offense.9 The degree of similarity

that is required between a defendant’s other act and the charged offense depends on the

manner in which the prosecution intends to use the other-acts evidence. See Mardlin,

487 Mich at 616; Crawford, 458 Mich at 395 n 13; VanderVliet, 444 Mich at 67. The

VanderVliet Court explained:

If we ask, does [the] misconduct have to exhibit striking similarity with the misconduct being investigated, the answer is, only if similarity is relied on. Otherwise not. There are only two classes of case[s,] [those in which similarity is relied on and those in which it is not], and they do not depend on the nature of the evidence, but on the nature of the argument. [VanderVliet, 444 Mich at 67 (quotation marks and citation omitted; alterations in original).]

This principle is clear. If the prosecution creates a theory of relevance based on

the alleged similarity between a defendant’s other act and the charged offense, we require

a “striking similarity” between the two acts to find the other act admissible. Id. When

the prosecution’s theory of relevancy is not based on the similarity between the other act

and the charged offense, a “striking similarity” between the acts is not required. Id.

In cases in which the prosecution has relied on similarity in seeking to admit

other-acts evidence, this Court and other courts have frequently prohibited the admission

of that evidence under MRE 404(b) due to the dissimilarity between the other acts and

the charged offenses. In Crawford, the prosecution introduced evidence of the

9 The prosecutor told the jury that defendant violently assaulted Bush “just like” he violently assaulted Woodward. The prosecutor further stated that defendant’s acts in 2002—bashing a window and shooting Bush—were similar to defendant’s acts in this case—striking Woodward and bashing him with a lamp. And since there was no self-defense in the 2002 incident, there could be no self-defense here: “They’re not coincidences. No self defense.”

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defendant’s prior drug conviction, emphasizing the similarity between the prior offense

and the charged offense of possession with intent to deliver cocaine. Crawford, 458

Mich at 392-393. This Court found an “insufficient factual nexus” between the prior act

and the charged offense to warrant admission. Id. at 395-396. The Court highlighted the

distinct natures of the prior act and the charged offense; in the prior act involving the

delivery of cocaine, the defendant had been caught in the act of selling drugs, a fact that

was not present in the charged offense of possession. Id. at 396. The Court further

explained:

If, however, defendant’s prior crime involved the concealment of drugs in the dashboard of his car, that evidence would likely be admissible under the doctrine of chances because of the stark similarity of the two crimes. There is, then, a continuum upon which each proffered prior act must be placed; the more similar the prior act to the charged crime, the closer the evidence to the admissibility threshold. [Id. at 395 n 13.]

Given the lack of similarity between the defendant’s prior and charged offenses, the

Crawford Court concluded that the prior conviction only demonstrated that the defendant

was “the kind of person” who would distribute drugs and that the conviction was

logically relevant solely by way of this forbidden intermediate inference of bad character.

Id. at 397. Therefore, we ruled that the defendant’s prior conviction was character

evidence “masquerading” as evidence purportedly offered for a proper purpose and was

inadmissible. Id.

In People v Knox, 469 Mich 502; 674 NW2d 366 (2004), to prove that the

defendant had physically abused and murdered his infant son, the prosecution introduced

evidence that the defendant had become angry with the child’s mother in the past, and

had physically abused her. Id. at 506. The Court considered whether the prior violent act

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and the charged violent offense were “sufficiently similar” to render the prior act relevant

under MRE 404(b), ultimately finding the prior act inadmissible. Id. at 512-515. The

Knox Court noted that the prior act of violence and the charged offense were distinct in

nature, emphasizing that the defendant’s prior manifestations of anger towards the mother

bore no resemblance to the acts determined to have caused the death of the child. Id. at

512. The Court also highlighted that the violent acts were committed against two

different people. Id.

In United States v Sanders, 964 F2d 295, 298 (CA 4, 1992), the prosecution

introduced, under FRE 404(b), evidence of the defendant’s prior assault conviction to

rebut the defendant’s assertion of a self-defense claim to the charged assault offense.10

The United States Court of Appeals for the Fourth Circuit found error requiring reversal.

Id. at 299. The court noted that because the defendant had admitted to stabbing the

complainant, the only factual issue was whether his claim of self-defense provided the

reason for the stabbing. Id. at 298. The Fourth Circuit reasoned, “The fact that [the

defendant] had committed an assault on another prisoner . . . had nothing to do with his

reason for—his intent in—stabbing [the complainant].” Id. at 298-299. Although the

prosecution was able to articulate a permissible purpose for admission—rebutting

defendant’s self-defense claim—the court concluded that there was no relevance to the

prior assault conviction. Id. The evidence only established the defendant’s propensity to

10 “Because the Michigan Rules of Evidence in general parallel the text of the federal rules on which the state committee’s product was based, we find helpful and, in some instances, persuasive, commentary and case law that refers to the Federal Rules of Evidence.” VanderVliet, 444 Mich at 60 n 7.

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commit assaults on other individuals or his general propensity to commit violent crimes,

the exact kind of propensity evidence prohibited by FRE 404(b). Id. at 299.

In United States v Commanche, 577 F3d 1261, 1265 (CA 10, 2009), the trial court

admitted testimony about the defendant’s two prior assault convictions to rebut the

defendant’s self-defense claim. The United States Court of Appeals for the Tenth Circuit

reversed, finding that the rebuttal of the defendant’s self-defense claim using the prior

assault convictions only served to establish “a chain of inferences dependent upon the

conclusion that [the defendant] has violent tendencies and acted consistent with those

tendencies during the fight.” Id. at 1269. The court held that the evidence was

inadmissible under FRE 404(b) because the other-acts evidence could not show that “[the

defendant’s] self-defense theory was invalid unless the jury impermissibly infer[red] that

he acted in conformity with a violent predisposition . . . .” Id.

In this case, we conclude that the evidence of the 2002 incident was not probative

of anything other than defendant’s allegedly bad character and propensity to commit the

charged offense. As noted earlier in this opinion, the prosecution built a theory of

relevance centered upon the supposed similarity between the 2002 incident and the

charged offense to rebut defendant’s claims of self-defense and defense of others.

Consequently, to prove sufficient similarity, the prosecution must show “striking

similarity” between the other act and the charged offense. VanderVliet, 444 Mich at 67

(“If we ask, does [the] misconduct have to exhibit striking similarity with the misconduct

being investigated, the answer is, only if similarity is relied on.”) (quotation marks and

citation omitted; alteration in original); see also Mardlin, 487 Mich at 620 (“The acts or

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events need not bear striking similarity to the offense charged if the theory of relevance

does not itself center on similarity.”). The prosecution has failed to show such similarity.

The 2002 incident and the charged offense bore notable differences. See Knox,

469 Mich at 509-513; Crawford, 458 Mich at 395-397. The 2002 incident involved a

completely different situation and a victim who was completely unrelated to the charged

offense. The 2002 incident consisted of a seemingly calculated attack to recover a drug

debt, whereas the instant offense involved an allegedly spontaneous reaction by

defendant after he witnessed his daughter and Woodward in a state of partial undress.

The 2002 incident did not involve a claim of self-defense or defense of others, while the

current case clearly does.

Indeed, the only similarity between these two incidents is that both were assaults

allegedly committed by defendant. Rather than being sufficiently similar and providing a

proper noncharacter purpose for admission into evidence, the 2002 incident served solely

to demonstrate defendant’s propensity for violence. As in Sanders, because defendant in

this case admitted to using nondeadly force against Woodward, the only issue was

whether he used such force in justifiable defense of himself or others. See Sanders, 964

F2d at 298. The fact that defendant had previously assaulted a completely different

individual in a completely different scenario years earlier had no probative force other

than to show that defendant was the “kind of person” who would assault someone. See

Crawford, 458 Mich at 397; Knox, 469 Mich at 512-513; Sanders, 964 F2d at 298-299.11

11 In addition to the lack of similarity, we note that the other act in this case was remote in time, occurring approximately 10 years before the charged offense, which further limits its logical relevance. See People v Yost, 278 Mich App 341, 405; 749 NW2d 753 (2008)

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In other words, the other-acts evidence created a chain of inferences dependent on the

preliminary conclusion that defendant had violent tendencies and acted consistently with

those tendencies in attacking Woodward. See Commanche, 577 F3d at 1269. This is

exactly the kind of propensity evidence that MRE 404(b) prohibits. See Sanders, 964

F2d at 298-299. Given the insufficient similarity between the 2002 incident and the

charged offense, the prosecution has failed to establish “some intermediate inference,

other than the improper inference of character, which in turn is probative of the ultimate

issues in this case.” Crawford, 458 Mich at 391. As a result, we hold that the other-acts

evidence was inadmissible.

In sum, the circumstances of the prior conviction did not bear a striking similarity

to those of the charged offense. Instead, the prosecution relied on the impermissible

inference that defendant had committed the charged offense because of his supposed

violent character. Therefore, although the prosecution nominally recited what could be a

proper purpose under the first prong of the VanderVliet test, evaluation of the probative

value of the other-acts evidence under the second prong of the VanderVliet test reveals

that no such purpose actually existed in this case; rather, evidence of the 2002 incident

constituted mere character evidence “masquerading” as evidence intended to rebut

defendant’s claims of self-defense and defense of others. See Crawford, 458 Mich at

397.

(“Although there is no time limit applicable to the admissibility of other acts evidence, see MRE 404(b), the remoteness in time between the charged conduct and the more serious allegations of physical abuse limits the logical relevance of these other acts . . . .”).

21

The lower courts in this case failed to properly examine the purpose and probative

value of the 2002 incident and therefore failed to recognize the impropriety of this

evidence. The trial court entirely failed to analyze the probative value of the 2002

incident.12 In turn, the Court of Appeals summarily concluded that the other-acts

evidence had “significant probative value concerning a specialized matter in dispute:

defendant’s self-defense claim.” Denson, unpub op at 5. In doing so, the Court of

Appeals succumbed to the “common pitfall” of condoning other-acts evidence simply

because the prosecution managed to recite a potentially proper purpose. Crawford, 458

Mich at 387. By failing to “weed out character evidence that is disguised as something

else,” and by failing to closely scrutinize the probative value of the proffered act, the

lower courts permitted the admission of improper other-acts evidence and thus erred

under MRE 404(b). Id. at 388.13

12 In fact, the trial court inexplicably fueled misuse of the other-acts evidence. In response to a statement by the prosecutor that the evidence was “just an example of Mr. Denson losing control and using excessive force against an individual,” the trial court ruled that the prosecution could use the evidence as part of “an argument that [defendant] has some kind of temper or that he has bad judgment or something like that.” This ruling blatantly encouraged the use of an improper propensity inference, which runs squarely counter to the fundamental principle that other-acts evidence is inadmissible for propensity purposes. Sabin, 463 Mich at 56; Crawford, 458 Mich at 383. 13 In this case, because we conclude that the other-acts evidence was inadmissible in that it was not logically relevant to a permissible purpose, it is unnecessary to discuss unfair prejudice, the third prong of the VanderVliet test, or any limiting instruction, the fourth prong of the VanderVliet test. See VanderVliet, 444 Mich at 55.

22

IV. HARMLESS ERROR

Although we find error in the admission of the other-acts evidence under MRE

404(b), we apply harmless-error review; a preserved nonconstitutional error “is presumed

not to be a ground for reversal unless it affirmatively appears that, more probably than

not, it was outcome determinative—i.e., that it undermined the reliability of the verdict.”

Douglas, 496 Mich at 565-566 (quotation marks and citations omitted); Lukity, 460 Mich

at 495-496. We “focus[] on the nature of the error and assess[] its effect in light of the

weight and strength of the untainted evidence.” Lukity, 460 Mich at 495 (quotation

marks and citation omitted). In this case, we find that the error was not harmless and,

consequently, that defendant’s conviction must be reversed.

We have noted that other-acts evidence carries with it a high risk of confusion and

misuse. Crawford, 458 Mich at 398. When a “defendant’s subjective character [is used]

as proof of conduct on a particular occasion, there is a substantial danger that the jury

will overestimate the probative value of the evidence.” People v Engelman, 434 Mich

204, 213 n 16; 453 NW2d 656 (1990), quoting Imwinkelried, Uncharged Misconduct

Evidence, § 2:18, pp 48-49. The risk is severe that the jury “will use the evidence

precisely for the purpose that it may not be considered, that is, as suggesting that the

defendant is a bad person, a convicted criminal, and that if he ‘did it before he probably

did it again.’ ” Crawford, 458 Mich at 398. And in Commanche, the Tenth Circuit

emphasized the dangerous potential of admitting improper other-acts evidence in a self-

defense case:

[O]ther crimes evidence is strong medicine for juries. Even if not argued at closing, when faced with the single disputed issue in the case—self defense—the jury could not escape[] the clear articulation that Commanche

23

was a violent and aggressive person who was merely repeating that tendency. [Commanche, 577 F3d at 1269-1270 (citation omitted).]

In this case, defendant and Woodward testified to highly conflicting accounts of

the same incident, but the introduction of the inadmissible evidence tipped the scales,

buoying Woodward’s credibility while helping to sink defendant’s. See Sanders, 964

F2d at 299; Knox, 469 Mich at 513. To prove the elements of the charged offense, and to

rebut defendant’s claims of self-defense and defense of others, the prosecution needed the

jury to believe Woodward’s testimony that defendant had suddenly and viciously

attacked him without justification. To this end, the prosecution introduced evidence of

the 2002 incident, the only purpose of which was to convince the jury that defendant was

an aggressive and violent man and that Woodward was simply another victim of

defendant’s violent tendencies. After asking defendant about the 2002 incident, the

prosecutor immediately accused defendant of having a bad temper and beating

Woodward to release his pent-up rage. In questioning DD, the prosecutor presented

defendant’s past anger issues as a well-known chapter of “family history” and a character

flaw that explained why defendant would “lose control” with Bush, DD, and Woodward.

The prosecutor asked Rosemary Denson if defendant’s trouble with Bush caused her to

fear defendant, implying that defendant’s temper was indiscriminate. And, in the middle

of questioning DD’s sexual assault counselor about the purpose of her consultation with

DD, the prosecutor raised the entirely unrelated issue of whether she knew of defendant’s

previous assaultive conduct in Detroit. These questions evoked the very propensity

inference that MRE 404(b) forbids. This was all painted in bare contrast to the

prosecutor’s presentation of Woodward as a “nice boy” and a “good guy.” Such use of

24

the impermissible propensity inference prohibited by MRE 404(b), which the prosecution

repeatedly made to the jury, convinces us that the jury “could not escape[]” the

impermissible inference invited by this evidence and that the prejudice defendant

suffered as a result was severe enough to entitle him to relief.14 Commanche, 577 F3d at

1270; see also Crawford, 458 Mich at 398-399; Engelman; 434 Mich at 213 n 16.

The prosecution further compounded the problem in its closing remarks to the

jury. Addressing defendant directly, the prosecutor argued that there was no reasonable

doubt that defendant did not act in “defense of anybody” because defendant was a “bully”

and a “coward” who lost control with Woodward, just as he had lost control with Bush.

Thus, it was “not a coincidence” that “this guy pounded on [Woodward].” Because there

was no viable self-defense claim in the 2002 incident, asserted the prosecutor, there could

be no viable self-defense claim here.

In sum, the prosecution used the other-acts evidence at trial to engineer an

argument that the 2002 assault demonstrated that defendant was a violent person in

general, which thereby proved that defendant assaulted Woodward without justification

in 2012. The message sent to the jury by this evidence was as clear as it was improper,

and its “reverberating clang” could not be unheard. Crawford, 458 Mich at 399

(quotation marks omitted). The prosecution also paraded this evidence in front of the

jury in a manner that encouraged the jury to draw the forbidden propensity inference,

14 Although not necessary to this conclusion, we note that the effectiveness of the prosecution’s propensity-based trial strategy and the prejudice it caused are well illustrated by one juror’s request that the court ask a police witness, “[D]o you think Mr. Denson is a violent person, or can be a violent person or have a bad temper[?]”

25

repetition which further enhanced the danger of unfair prejudice arising from admission

of the other-acts evidence. See Crawford, 458 Mich at 400 n 17.

Although the prosecution also introduced photographs and medical testimony

regarding Woodward’s injuries, the mere presence of some corroborating evidence does

not automatically render an error harmless. Otherwise, our directive to assess the effect

of the error “in light of the weight and strength of the untainted evidence” would have no

meaning. See Crawford, 458 Mich at 399-400. In this case, defendant’s version of

events was not wholly inconsistent with the injuries Woodward sustained. On these

facts, we believe the improper admission of the other-acts evidence undermined the

reliability of the verdict by making it more probable than not that, had this evidence not

been admitted, the result of the proceedings would have been different. Lukity, 460 Mich

at 495-496. The error, therefore, was not harmless.15 15 We note that whether admission of other-acts evidence is harmless is a case-specific inquiry; the effect of an error should be determined by the particularities of an individual case. See Crawford, 458 Mich at 399-400 (“The prejudice inquiry ‘focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.’ ”) (citation omitted). In this case, the lack of any 404(b)-permissible probative value combined with the repeated misuse of the evidence makes our decision a relatively straightforward one.

We are not convinced by the dissent’s urgings to the contrary. The dissent admits that the prosecution’s other-acts evidence was used to show that defendant “employed unjustified and excessive force when faced with situations involving conflict and confrontation.” Yet the dissent attempts to minimize the impact of this impermissible evidence by trying to separate it from what the dissent considers the core of the case: “whether the attempted rape actually occurred, or whether the rape claim was concocted after the fact.” To the contrary, we believe the improper other-acts evidence influenced this core issue in one of the most problematic manners—it rendered the issue immaterial. If the impermissible evidence caused the jury to believe that defendant was indeed the type of person who used “unjustified and excessive” force in confrontational situations, then whether a sexual assault actually occurred would be inconsequential to resolution of

26

V. CONCLUSION

We hold that the admission of evidence related to the 2002 incident was erroneous

because the evidence was not logically relevant to a proper noncharacter purpose under

MRE 404(b). We also hold that this error was not harmless. Therefore, we reverse the

judgment of the Court of Appeals and remand this case to the trial court for a new trial.

Richard H. Bernstein

Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Joan L. Larsen

the case. The altercation between Woodward and defendant was undoubtedly a confrontational situation, and the impermissible evidence encouraged the jury to conclude that defendant acted as he previously had in confrontational situations—with unjustified and excessive force—that is, he took actions that by definition cannot support a claim of self-defense or defense of others. Said differently, due to the improper other-acts evidence and the propensity inference it invited, the jury had no need to decide what the dissent labels “the issue that the jury was called on to decide at trial . . . .”

The dissent also seeks to diminish the harm inflicted by the erroneously admitted evidence by emphasizing defendant’s post-altercation behavior and the post-altercation behavior of several defense witnesses. In the dissent’s view, this post-altercation behavior demonstrates defendant’s guilt. But the dissent errs by concluding that the evidence it identifies invariably supports the prosecution’s theory of the case. The jury could reasonably have found the evidence to be consistent with defendant’s version of events as well. Moreover, the dissent fails to fully consider the nature of the error in this case. As detailed earlier in this opinion, the other-acts evidence in this case had no probative value beyond the propensity inference forbidden by MRE 404(b), and the evidence created a high risk of prejudice to defendant. Further, the prosecutor referred to the evidence throughout the trial to paint defendant as a violent person. Focusing on the nature of the error and assessing its effect in light of the weight and strength of the untainted evidence, we cannot agree with the dissent that the evidentiary error was harmless. See Crawford, 458 Mich at 399-400.

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 152916

TMANDO ALLEN DENSON,

Defendant-Appellant.

WILDER, J. (dissenting).

I respectfully dissent from the majority opinion. Assuming arguendo that

evidence of defendant’s prior act was improperly admitted pursuant to MRE 404(b), the

error does not require reversal because, “after an examination of the entire cause,” MCL

769.26, it does not affirmatively appear that it is more probable than not that the error

was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607

(1999). Because defendant has not shown that it is more likely than not that he would

have been acquitted if the evidence had been excluded, I would simply deny leave to

appeal, leaving intact defendant’s conviction.

The prosecution and the defense agreed on a few common facts. Defendant’s 15-

year-old daughter was alone in her bedroom with her boyfriend, Shamark Woodward, in

the early evening hours of October 22, 2012. Under either version of events, the couple

was in varying stages of undress when defendant appeared in his daughter’s bedroom and

inflicted serious injuries upon Woodward. There was no question regarding whether

defendant committed the assault on Woodward—the only serious point of contention was

2

whether the assault was legally justified. As a general matter, a defendant who asserts

the affirmative defense of self-defense “admits the crime but seeks to excuse or justify its

commission.” People v Dupree, 486 Mich 693, 704 n 11; 788 NW2d 399 (2010).

The theory proffered by the defense was that defendant possessed an honest and

reasonable belief that his daughter was being sexually assaulted by Woodward, and

defendant used the force necessary to prevent an imminent forcible sexual penetration, as

well as to protect himself from Woodward. The prosecution, on the other hand, sought to

establish that defendant’s claim of attempted rape was wholly fictional, concocted by

defendant after the assault had occurred in order to escape criminal responsibility for the

savage beating of Woodward.

In my opinion, the extent and nature of Woodward’s injuries are wholly

inconsistent with any claim of self-defense. With the exception of the bruising and

swelling Woodward suffered as a result of being punched and kicked in the face by

defendant, none of the victim’s injuries was on the front of his body. All of the victim’s

serious injuries, requiring 21 sutures and 8 staples to close, were located on the back and

side of his body. Moreover, the actions of defendant and his family after the incident

were inconsistent with any claim that defendant possessed an honest and reasonable

belief that his daughter was the victim of an imminent sexual assault by Woodward.

Simply put, more than ample evidence existed for the jury to conclude that defendant’s

claim of attempted rape was fabricated.

According to defendant’s testimony, after hearing “the holler, the scream” of his

daughter, defendant ran up the stairs and saw Woodward, who was naked from the waist

down, with his hand “in [his daughter’s] pants.” Believing he was encountering the

3

imminent rape of his daughter, defendant screamed and began hitting Woodward, who

immediately jumped up and began fighting back. After a bit of fisticuffs, Woodward ran

downstairs with defendant in pursuit, and Woodward threw a glass at defendant. After

Woodward purportedly ran back upstairs, defendant testified that Woodward “threw his

hands in the air” and apologized for being “stupid.” Defendant testified that he returned

Woodward’s clothing and permitted him to leave the residence. Only when pressed

during cross-examination did defendant acknowledge that he broke a lamp over

Woodward’s head and that he “probably” kicked and stomped Woodward, but defendant

could not recall with “what all” he beat Woodward. Defendant further acknowledged

that he “probably” inflicted the knife wounds on Woodward’s back, but did not know

how the lacerations occurred. Indeed, defendant testified that he did not “believe” the

lacerations “happened” until he was shown pictures. In contrast, Woodward testified that

the several knife wounds to his back and shoulders were inflicted by defendant while

Woodward was sitting in the corner “in the fetal position.”

Defendant did not call the police to have Woodward arrested for the attempted

rape of his daughter. Rather, defendant testified that he used his cell phone to call his

sister prior to Woodward leaving the residence. Defendant testified that his daughter was

“crying so hard that we couldn’t communicate[.]” At that point, defendant and his sister

left the residence, leaving behind his weeping daughter as well as his 10- and 11-year-old

sons. Defendant claimed that he made two telephone calls to “a law enforcement officer”

(his parole officer), followed by a trip to the police department to file a police report, only

to discover that the police department was closed. Rather than return to his residence to

provide comfort and support to his traumatized daughter, defendant testified that he went

4

to his sister’s house and had an “anxiety attack.” Defendant returned to the residence on

the following day, October 23, 2012. Later that day, defendant went to the home of “a

couple of buddies . . . computer geeks” who assisted defendant in drawing up a notarized

document entitled “Affidavit and Statement of Facts: PRESUMPTION REGARDING

SELF-DEFENSE.”

Defendant acknowledged that it had “crossed [his] mind” that he might get in

trouble as a result of the incident. When asked why he left his children home alone after

the alleged attempted sexual assault, defendant testified:

Um, we went directly--like I said, we went to the police department and I made the phone calls. I came home early in the morning, but my wife was there, I’m sorry. Um, my wife got home shortly after midnight. And that’s, you know, I went to the police department. And then I ended up at my sister’s house, and um, I was on the phone with my wife too, in and out throughout the, you know. And I went home as soon as I could walk, as soon as I could get up and walk. And that was like 6:30 or 7:00 o’clock in the morning. And I was there. I didn’t anticipate leaving (inaudible) I let ‘em. You know I go to work and I come home. My daughter’s--you know, but she wasn’t. That’s the answer.

Likewise, defendant acknowledged that he called his parole officer rather than

emergency services. When asked why he did not simply call 911 to report the crime,

which would have permitted him to remain at the residence with his distraught daughter,

defendant provided an explanation that indicated both that he did and did not call 911:

911 doesn’t come when we call. When we call 911, they do not come, unless someone is dead. Do you know what the 911 operator told me, is the person dead? I said no, he’s no longer there. And she said, well wait ‘til tomorrow, someone will be there when shift changes.

5

In contrast, defendant admitted to his parole officer that he made no attempt to contact

the police on the night of the incident because “he did not want to have police contact.”

This same admission was contained in defendant’s own notarized affidavit.

Rosemary Denson, defendant’s wife, testified that she arrived home from work

around 1:00 a.m. on October 23, 2012. She testified that her children were home and that

defendant had “left with his sister.” After talking to defendant, who indicated that he was

going to go to the police station, Mrs. Denson telephoned the Flint Police Department and

was instructed to call 911. Mrs. Denson testified that she called 911 and reported the

crime to Operator 70, who told her that “someone would be out that day” to talk to her

and her daughter. In reality, the 911 records keeper testified that the dates and times of

911 calls are computer generated and that the very first phone call regarding an alleged

sexual assault came from Mrs. Denson on October 24, 2012, at 4:00 a.m., approximately

30 hours after the alleged sexual assault occurred and approximately 5 hours before

defendant was arrested in the office of his parole officer. In the 911 call, which was

played for the jury, Mrs. Denson claimed that the assault took place “last night” while she

was at work and that she was “told [about it] this morning.”

Defendant’s daughter testified that she was alone in her bedroom with Shamark

Woodward. Woodward kissed her, pushed her down on the mattress, held her arm down

and pulled her jogging pants “halfway down” before defendant pulled Woodward off her

and Woodward and defendant began “hitting and pushing.” Despite acknowledging that

she was present in her bedroom the entire time, defendant’s daughter denied ever seeing

her father kicking Woodward in the face, beating Woodward with a shoe, or wielding a

knife. She testified that she did not “know” whether defendant stomped and kicked

6

Woodward or whether her father smashed a lamp over his head. Indeed, defendant’s

daughter claimed that she simply “didn’t pay attention to” the lamp. She also denied

seeing “any cuts” on Woodward, claimed that there “wasn’t no blood” on Woodward,

and stated that she did not hear “any conversation” between defendant and Woodward.

However, the day after the assault, defendant’s daughter initiated a messaging

conversation with Woodward on social media, seeking Woodward’s forgiveness for

“dragging [him] into this,” telling him that she loved him, and indicating that she needed

to hear his voice. Upon learning that defendant retained possession of Woodward’s

phone, defendant’s daughter responded that she thought Woodward was “just ignoring

[her] calls.” She inquired whether Woodward could call her from someone else’s

telephone because if she heard his voice she would “feel better.”

Upon review of the entire record, the 404(b) evidence admitted in this case was

admitted to show that defendant employed unjustified and excessive force when faced

with situations involving conflict and confrontation, in order to counter defendant’s claim

of self-defense. In actuality, however, the evidence had very little to do with the issue

that the jury was called on to decide at trial—whether the attempted rape actually

occurred, or whether the rape claim was concocted after the fact. Clearly, the jury opted

to believe that the rape claim was fictional, and that defendant committed the crime of

assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84,

because Woodward was caught in flagrante delicto with defendant’s daughter. However,

if a defendant is found to act with the intent to do serious injury of an aggravated

nature—the requisite intent for AWIGBH—the fact that he was provoked or acted in the

heat of passion is irrelevant. People v Stevens, 306 Mich App 620, 628-629; 858 NW2d

7

98 (2014); People v Mitchell, 149 Mich App 36, 39; 385 NW2d 717 (1986). Such is the

situation in this case. At sentencing, the judge noted that some parents would “respond

forcefully” “if they found their fifteen year old daughter in bed with a young man.”

However, the trial judge also noted that defendant’s use of a knife to slash Woodward—

to inflict serious injury of an aggravated nature—was beyond the pale:

And that’s the difference. The knife is the difference. And I think that’s why the jury convicted you. And that’s [why] you have to take this penalty. There’s a lot of people that would understand why you started doing what you did but they don’t understand why you finished doing what you did.

Just as the trial judge specifically linked the defendant’s use of a knife to the sentence the

trial court imposed, so too must we recognize that the jury had the same evidence before

it and considered this same over-the-top conduct when rejecting defendant’s self-defense

claim.1 “An appellate court must remember that the jury is the sole judge of the facts. It

is the function of the jury alone to listen to testimony, weigh the evidence and decide the

questions of fact. . . . Juries, not appellate courts, see and hear witnesses and are in a

much better position to decide the weight and credibility to be given to their testimony.”

People v Hardiman , 466 Mich 417, 431; 646 NW2d 158 (2002) (quotation marks,

1 It is for this reason that United States v Commanche, 577 F3d 1261, 1266-1269 (CA 10, 2009), is inapposite. Commanche held that the other-acts evidence was inadmissible because the evidence could not show that the defendant’s self-defense theory was invalid unless the jury impermissibly inferred that he acted in conformity with a violent predisposition. In this case, consideration of the other-acts evidence was not required for the jury to invalidate defendant’s claim of self-defense—the 21 sutures and 8 staples spoke for themselves.

8

citation, and brackets omitted). Because defendant has not shown that he would more

likely than not have been acquitted if the evidence had been excluded, I respectfully

dissent from the majority opinion and would deny leave to appeal.

Kurtis T. Wilder